Monday, August 29, 2016

More on the Hillary Clinton "access" issue

Thomas Lippman makes a point in Clinton Foundation Story Highlights DC’s Access ProblemLobeLog Foreign Policy 08/29/2016 similar to the one I made in my previous post on the controversy over whether donors to the Clinton Foundation may have received preferential treatment in official business when Hillary was Secretary of State:

The outrage, however, is misdirected. This is not just about who got face time with the secretary of state; it’s about the way Washington works all the time, regardless of who is president or who is secretary of any cabinet department. Access is to people in Washington what gold is to gold miners. It is what lobbyists and trade association executives are paid to develop; it is what enables think tanks to get their policy papers to the top of the inbox. It’s why government official X or Senator Y returns this phone call instead of that one. Rarely is there a specific trade-off. In this sense Washington is no different from Albany or Sacramento or any other state capital.

Is this corruption? Angry voters may think so because the system appears to favor some insiders over ordinary folk, but the U.S. Supreme Court didn’t agree, overturning the conviction of former Virginia governor Bob McDonnell in a gifts-for-access case. Absent a specific quid pro quo, the Court ruled, it’s not corruption, even if it doesn’t pass the smell test. Similarly, the court ruled in the Citizens United case that corporate contributions to political campaigns are free speech, not corrupt purchase of access. [my emphasis]

This is an important point that understandably may not be not entirely clear to many voters. And it's a key issue in regulating campaign finances. Pay-for-play arrangements between donors and politicians are illegal. But the law can't be enforced unless an explicit quid pro quo arrangement can be proven.

One of the most famous cases in which quid pro quo was demonstrated was the FBI sting operation in the 1970s kinow as Abscam. The 2013 film American Hustle was based on the Abscam case. Ted Sherman summarized the case in Jersey Hustle: The real-life story of AbscamInside Jersey 11/25/2016

The elaborate sting ensnared seven members of Congress, including six in the House of Representatives and a veteran U.S. Senator, along with a powerful New Jersey state legislator, three Philadelphia councilmen and a number of high-level political operatives. Abscam involved phony, oil-rich Arab sheiks with suitcases full of cash, stolen artwork, payoffs for Atlantic City casino licenses and backroom influence peddling that generated worldwide headlines and set off political shockwaves for years thereafter.

The undercover probe, which came to light in February 1980, ultimately led to the convictions of Sen. Harrison A. Williams (D-N.J.), Camden Democratic Mayor Angelo Errichetti, New Jersey Democratic Congressman Frank Thompson Jr., and other lawmakers, who were caught on secretly recorded surveillance video accepting tens of thousands of dollars in bribes.

It was a sting that still enrages defense attorneys who say it was based on crimes the government itself created. Sharply criticized by one federal district judge who accused the government of using “outrageous” tactics, the affair was flatly labeled a case of prosecutorial misconduct by a former U.S. Attorney for the District of New Jersey.

The fact that the case was a sting operation is an illustration of the difficulty of enforcing the laws against quid pro quo in campaign donations. Unless the deals are recorded or a direct participant rats out the others, it's nearly impossible to prove. People making large campaign donations for a illegal quid pro quo aren't in the habit of making written contracts spelling out the illegal obligations. In the Asbscam sting, Democratic Congressman Michael Myers was famously recorded as saying to someone he thought was a donor, "money talks and bullshit walks."

That's why the problem has to be controlled through regulations, limits and reporting requirements on campaign donations. Wendy Brown in Undoing the Demos (2015) characterizes the Supreme Court's 2010 Citizens United decision this way, "Calling such bans an abridgement of free speech and giving corporations the standing of persons with an unqualified right to political speech, the ruling permits corporate money to overwhelm the election process." She observes that the decision "permits large corporations to finance elections, the ultimate icon of popular sovereignty in neoliberal democracy." Without the ability to regulate such campaign contributions, the ban on explicit quid pro quo is effectively meaningless.

Lippman in his final paragraph has this comment on the complexity of access issues:

The problem in the Clinton access case is not that individuals pulled whatever strings they could to gain access to her or to someone who could obtain access for them. That happens all the time, even if ordinary Americans don’t understand how the system operates. The problem is that the apparent lubricant in this case was money, which people do understand, but there are other lubricants, such as the potential for a post-government job. It would be a mistake to believe that if there were no Clinton Foundation, people would not have had some other channel by which to seek access to Secretary Clinton. The Crown Prince of Bahrain, for example, might have gone through a contact in the Navy, rather than the Foundation, because his country is home to the Fifth Fleet. Inside the Beltway, that’s what access is all about. [my emphasis]

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